RAI RAJ KUMAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 791/2019

[2023] HKCFI 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 791 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him on 14 November 2022. However, he was absent without prior notice to the Court. I shall deal with his application on paper.

The applicant

3.  The applicant is a national of Nepal.  He entered Hong Kong on 19 April 2014 and was permitted to stay as a visitor until 27 April 2014.  He did not depart and had overstayed.  On 24 June 2015, he surrendered himself to the Immigration Department.  On 18 September 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his wife Rai Man Kumari and her boyfriend Jetha. 

4.  In short, the applicant married Kumari in 1993.  From 2009 to 2013, he went to work in Saudi Arabia.  He regularly sent his salary to his wife. However, in around 2012, Kumari had an affair with Jetha.  When he returned to Nepal in 2013, he demanded the return of his money and the properties which were already registered under Kumari’s name.  Later, during a negotiation with Kumari, the applicant was almost attacked by Jetha.  He escaped and reported the incident to the police.  The parties were invited to the police station for inquiry.  In the police station, Jetha again attempted to assault him but was stopped.  The applicant lost the case against his wife.  He had no other options as Kumari’s family was rich and influential.  Thereafter, he received constant death threats from Kumari and Jetha.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraphs 8 to 24 of the Notice of Decision dated 9 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) there was no substantial ground to believe that his wife and Jetha intended to serious harm or even kill him [30]-[31]; (ii) state protection would be available to him [32]-[35]; and (iii) internal relocation was a viable option [36].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  On 19 September 2018, the Board heard his appeal.

8.  The Board considered the relevant legal principles and the country of origin information [43]-[61].  It proceeded to assess the applicant’s credibility and concluded that the core of his evidence lacked clarity and was not credible [64].  In particular, the Board noted that the applicant contradicted himself in the details of Jetha [65]-[66]; that he provided inconsistent accounts as to the police’s actions in relation to his complaint [67]; and that, if his father in law was so influential, his wife would not have to harm him in fear that he would bring the case further [69].  In addition, the Board also found that the threats from his wife and Jetha, if any, were localized [86]-[87].

9.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant set out the grounds below.

(1)  He was not legally represented for the appeal and the hearing bundle was given to him a few days before the hearing before the Board. The documents are in English. He did not have sufficient time to prepare for his appeal.

(2)  He requested the Board to notify him the result by phone, which the Board did not do.

(3)  He was confused at the hearing. But he had answered all the questions put to him. He considers it is unfair for the Board not to believe his evidence.

(4)  The Board had relied on the source of news not officially recognized or it is simply hearsay. The Board had also relied on some cases which are outdated. Therefore, the Board had made groundless speculations that it is safe for him to return to his country.

(5)  It is unfair for BOR 2 risk to be assessed without screening process.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  As to the grounds under paragraph 11, supra, ground (1) fails as the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

16.  He had made no application to the Board for adjournment because he did not have enough time to prepare his appeal. He said that he had answered all the questions put to him by the Board, which shows that he was not confused and he understood what was going on at the Board hearing. The Board has no statutory duty to notify him on the phone. Ground (2) fails too. Ground (3) is not a valid ground. Ground (4) is his personal opinion without evidence in support. Ground (5) fails too as screening had been done for the other risks. It is unnecessary to conduct another screening for BOR 2 risk. All of the grounds fail.

17.  The Board had assessed his evidence and rejected his story with reasons. There is no valid reason from the applicant to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1